P. Guruswamy, v. The Project Director,

ORDER The petitioner is the plaintiff before the Additional District Munsif Court, Padmanabhapuram, in O.S.No.144 of 2019.

¶2The petitioner is aggrieved by the impugned order, dated

29.11.2022 passed by the Additional District Munsif Court, Padmanabhapuram in I.A.No.4 of 2019 in O.S.No.144 of 2019.

¶3By the impugned order, the said Court has declined to appoint an Advocate Commissioner on the ground that the petitioner has not established that the petitioner is the owner of the land, the petitioner has not prayed for declaration and that the petitioner is the owner of the area in which the pole has been erected by the respondent. The relevant portion of the order reads as under: "gpuhJ "rp" jgrpy; nrhj;jpy; mike;Js;sjhf $wg;gLk; kpd; fk;gj;ij mfw;w Ntz;Lnkd;Wk; mjdhy; Mizaiu epakdk; nra;J Nkw;gb nrhj;ij ghh;itapl;L mwpf;if kw;Wk; tiuglk; jhf;fy; nra;a Ntz;ba tiff;fhf ,k;kD jhf;fy; nra;ag;gl;Ls;sJ. Nkw;gb #o;epiyapy; gpuhJ "rp" jgrpy; nrhj;jpy; elg;gl;lLs;s kpd; fk;gj;ij mfw;w Ntz;Lnkd;W Nfhhpf;if tpLf;Fk; mNjrkaj;jpy; Nkw;gb gpuhJ "rp" jgrpy; nrhj;jhdJ kDjhuh/thjpf;Fj;jhd; chpik gl;ljh vd;W KbT nra;jhy; jhd; Nkw;gb nrhj;jpy; elg;gl;Ls;s kpd;fk;gj;ij mfw;w cj;jutplKbAk;. khwhf> gpuhJ "rp" jgrpy; nrhj;jhdJ kDjhuh/thjpf;F chpikg;gl;lJ my;y vd KbT nra;Ak; gl;rj;jpy; Nkw;gb kpd;fk;gj;ij mfw;w Ntz;ba mtrpak; ,y;iy. vdNt> gpuhJ "rp" jgrpy; nrhj;jhdJ kDjhuh/thjpf;F jhd; chpikg;gl;ljh vd;W KbT nra;a $ba ghpfhuj;ij mry; tof;fpy; Nfhuhj epiyapy; ,k;kDtpy; Mizaiu epakdk; nra;tJ Njitapy;yhj xd;W MFk; vd ,e;ePjpkd;wk; fUJfpwJ."

¶4It is the specific case of the petitioner that he is the owner of 29 cents of land, out of which, 8 cents of land were acquired by the respondents. It is further submitted that the respondents have also paid compensation for acquiring 8 cents of land. After acquiring 8 cents of land, the respondents have erected a Heavy Duty Electric Pole in the balance 21 cents of land and therefore, the petitioner was constrained to file the above said suit for mandatory injunction.

¶5It is the further case of the petitioner that the respondents remained ex parte before the Trial Court. Under those circumstances, the petitioner has filed I.A.No.4 of 2019 for appointment of an Advocate Commissioner to give a report under Order XXVI Rule 9 of C.P.C. It is submitted that the Trial Court has committed a grave error in rejecting the application stating that the petitioner has not filed the suit for declaration.

¶6The learned counsel for the petitioner submits that as admittedly, the land belongs to the petitioner and there is no dispute regarding the same. There is no question of the petitioner filing the suit for declaration to move an application under Order XXVI Rule 9 of C.P.C. for appointment of an Advocate Commissioner.

¶7The learned counsel for the first respondent submits that the extent of 425 square feet was acquired from the petitioner and another extent from the neighboring area belonging to one Karunakaran. It is submitted that the land acquired from the petitioner and the respondent has also paid a sum of Rs.8,37,928/- in terms of award, dated 18.11.2021 in Modification Award No.6/20115-53. Similarly, a sum of Rs.1,08,603/- has been paid to the said Karunakaran. It is submitted that the pole which has been erected in the acquired land was not the land which was acquired by the petitioner.

¶8I have considered the arguments advanced by the learned counsel for the petitioner.

¶9It is well settled principle of law that ordinarily where the suit is filed for mandatory injunction, the question of appointing an Advocate Commissioner to inspect the property is not allowed, as it would amount to collection of evidence.

¶10There is no dispute regarding the ownership of the land that has been left out with the petitioner after acquiring the land by the respondent for the national highway project. The only issue that arises for consideration is whether the pole has been erected is within the area acquired by the respondent or in the area, which has been left out of 21 cents of the land of the plaintiff. In my view, Advocate Commissioner can be appointed to inspect the property in presence of the revenue officials to give report as to whether the pole has which has been erected is within the area acquired or outside the land which belongs to the petitioner.

¶11It is noticed that the suit is of the year 2019. According to the learned counsel for the petitioner, the respondents have remained ex parte.

¶12Considering the above, the Trial Court is directed to expedite the disposal of the suit within a period of six months from the date of receipt of a copy of this order.

¶13This Civil Revision Petition stands allowed with the above observation. No costs. Consequently, connected miscellaneous petition is closed.

10.04.2023 NCC : Yes / No Index : Yes / No Internet : Yes / No sn To

1.The Additional District Munsif, Padmanabhapuram.

2.The Section Officer Vernacular Section, Madurai Bench of Madras High Court, Madurai. C.SARAVANAN

,J.

SN

10.04.2023

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 10.04.2023 CORAM THE HON'BLE MR.JUSTICE C.SARAVANAN and C.M.P(MD)No.2034 of 2023 P.Guruswamy ...Revision Petitioner/ Petitioner/Plaintiff Vs. 1.The Project Director, National Highways Authority of India (NHAI), No.314E, K.P.Road, Near Ayappan Koil, Parvathipuram, Nagercoil. 2.The Special Tahsildar, Land Acquisition, National Highways Authority of India (NHAI), Vilavancode, Thiruththuvapuram. 3.The District Revenue Officer (Special), Land Acquisition, National Highways Authority of India (NHAI) Tirunelveli, Nagercoil. 4.The District Collector, Collectorate, Nagercoil, Agasteeswaram taluk, Kanyakumari District. ... Respondents/Respondents/ Defendants PRAYER: Civil Revision Petition is filed under Article 227 of Constitution of India, to set aside the fair and decreetal order dated 29.11.2022 passed in I.A.No.4 of 2019 in O.S.No.144 of 2019 on the file of the Additional District Munsif, Padmanabhapuram. For Petitioner : Mr.M.R.Sreenivasan For R1 : Mr.Su.Srinivasan For R2 to R4 : Mr.G.Sivaraja Government Advocate